Rath v. Rath , 277 A.D.2d 1153 ( 1950 )

In this action for separation, a judgment in favor of the plaintiff and against the defendant, awarding plaintiff alimony in the sum of $5 a week, was granted on the 6th day of October, 1949, after trial on the 21st day of September, 1949. It appears that the parties had consented to this amount of alimony and that at that time the defendant was unemployed and that his sole income was the sum of $28 a week, which he was receiving as a workmen’s compensation allowance. Thereafter, and in December of 1949, the defendant returned to work, and has since been earning about $60 a week. The plaintiff accordingly made an application for a modification of the judgment so as to increase the amount of alimony. The motion was denied, but reargument thereof was granted, and the :matter referred to an Official Referee. The learned Referee conducted a hearing but, after taking the testimony of the plaintiff and two other witnesses on her behalf, and without hearing any proofs that might have been offered by the defendant, denied the application. It is the order made by the Official Referee denying the plaintiff’s motion from which this appeal is taken. In our opinion, the plaintiff established a prima facie showing that there has been such a change in circumstances since the making of the judgment as to warrant an increase in alimony. However, in view of the fact that, under the circumstances, the defendant had not had the opportunity to present his proofs before the Referee, the matter should be remitted for the taking of such other evidence as either of the parties may wish to adduce. Order reversed and the matter remitted to the Official Referee for proceedings in accordance with the foregoing views, with $10 costs and disbursements to appellant. Cars-well, Acting P. J., Johnston, Adel, Sneed and Wenzel, JJ., concur. [See 278 App. Div. 655.]